Baseline Control, Administrative Discretion

As an important component of the modern administration, administrative discretion plays a very important role in the maintenance of the normal operation of the community. Therefore, administrative discretion is indispensable. Specifically, on the one hand, specificity of the administration determines the existence of administrative discretion; on the other hand, incomprehensive of the legal norms makes the existence of administrative discretion. At the same time, administrative discretion is a "double-edged sword". On the one hand, rational use of administrative discretion is in favor of maintaining social order, protecting the initiative of the administration and improving the administrative efficiency; On the other hand, abuse of administrative discretion is bound to damage the legitimate rights and interests of the relatives and pose a threat to the rule of law. Therefore, administrative discretion must be controlled. On the control of administrative discretion, there are two traditional models, legislation control and judicial control. However, as a result of legislation can not be more specific and judicial should be restrained, it makes the theoretical circles reflect the traditional control model of administrative discretion. How to control the administrative discretion better so that it can not be fetters to the rule of law? In the theoretical circles, an internal self-regulation institution of administrative system, discretion standard emerges.The pharmaceutical industry is a kind of important industry, which affects the people's livelihood. As the administrative enforcement departments of the drug supervision, the drug supervision and administration departments carry out the supervision and management in the whole process of pharmaceutical production, circulation and use, and shoulder the responsibility of protecting people's health and safety. In the existing laws, rules, regulations and other normative documents, the discretion space of the drug supervision and administration departments mainly exists in the three-elements of the logical structure of the legal norms, especially in the element of the legal consequence. In reality, the discretion space of the drug supervision and administration departments is too large in drug administrative penalties, although it is within the scope of laws, rules, regulations and other normative documents, it also exists the phenomena of executive injustice and violating the legitimate rights and interests of the relatives in practice. Obviously, On the one hand, discretion power of drug administrative penalties is essential for modern administration; on the other hand, the efforts of traditional control models in the area of drug administrative penalties are a drop in the bucket. Therefore, the field needs discretion standard instead to fill the loophole.In the practice of drug administrative enforcement, discretion standard of drug administrative penalties has been introduced in some places, and it shows a trend of ascendant. Although some laws and regulations have provided the grounds for the drug supervision and administration departments, they can not fully solve the specific standards of the use of discretion power. It is an issue of strong interoperability, it needs to be explored and summarized continuously, and tested and improved constantly in the specific practice of the drug administrative enforcement. Therefore, this problem can only be solved by administrative department. If the drug supervision and administration departments can draft the discretion standard to guide the use of discretion power within the scope of laws, rules, regulations, to some extent, their penalty decisions will be more scientific, so that it can prevent the abuse of discretion and protect the legitimate rights and interests of the relatives.